As reported by copyright lawyer William Patry in a comment on his blog:

"... I would like to ... point[] to an amazing new UK historical resource. ... the project in the UK House of Commons to digitize (or as they say digitise) Hansard, the official record of the House of Commons, for the period 1803 to 2005. I have already used it and found great discussions of copyright issues, including the term of protection, as early as 1803.

In Against the artificial scarcity of IP law, Michel Bauwens has a nice summary of some of my own arguments against IP.

My 2001 article is now out in book form: Against Intellectual Property (Mises Institute, 2008). Of course, the Mises Institute offers a free PDF version online as well. And there is also a Scribd version.

Those interested in this might also find my article "There's No Such Thing as a Free Patent" of interest, plus my Austrian Scholars Conference 2008 Rothbard Memorial Lecture, "The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism" (originally titled "Rethinking IP Completely"), which is online. Here's the audio, the video, and the accompanying Powerpoint presentation (PPT, 32 MB; PDF version, 51 MB). The Google Video version is now available; embedded version below.

These and other material are available on my website.

Techdirt notes in CAFC Judge Regrets Decisions That Resulted In Software Patents that one of the federal judges on the Court of Appeals for the Federal Circuit admits that he was "troubled by the unintended consequences" of the earlier decisions that resulted in the proliferation of software and business model patents. Well at least he regrets it!

Now libertarian proponents of state legal systems are for some reason optimistic about the ability of state legislature and courts to promulgate just laws. Objectivist attorney Murray Franck , for example, wrote:

Just as the common law evolved to recognize "trespass by barbecue smoke," it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.

Hayek also believed that case-law might need occasional "correction" by the legislature (see my Legislation and the Discovery of Law in a Free Society, p. 171). Both Franck and Hayek here express confidence that it is possible for the state--via its courts and legislatures--to issue "just" law. Well, I don't know about that. Here we have a "bad" judicial interpretation of a "bad" legislated statute. Oh, well, I guess they can at least "regret" it.

(Cross-posted at Mises blog.)

Senior EPO official warns of tougher patentability standards and higher fees

The latest issue of IAM has now gone to press and will be published at the end of this week. There are a number of highlights, but for the cover story this time around I have gone for a piece written by Ciáran McGinley - the Controller of the EPO and so one of the office's most senior staff members - on the subject of "global patent warming". In the article, Ciáran goes into some detail about what the phrase means and what is causing it. "Incoming volumes are increasing per patent office due to globalisation driven by patent propensity and trade," he writes. "Pendency volumes are also increasing, pretty much independently of what has been happening to pendency times in the different offices. Finally, woolly boundaries are widespread, not just between granted patents but especially among pending applications. It is becoming too much, the system is gradually becoming much warmer. It may not be warm everywhere (yet). It may not be warm in all industrial sectors (yet). But it is definitely temperate."

I guess anyone daft enough to believe in "global warming" nonsense might also be alarmed at the patent system having problems.

On the July 24, 2008 show of Free Talk Live, the excellent libertarian radio program, there was a lively and interesting IP discussion between host Ian and three callers, on the anti-IP side, and host Mark, on the mildly pro-IP side. It's interesting to see the sincere but confused and fumbling host Mark utterly unable to articulate a coherent defense, or even definition, of IP, especially in response to intelligent criticism by his callers. Anyway, the show is good and Mark and Ian are both great.

The recorded show (28M MP3) is about 2 hours long; the IP discussion starts at the 1:21:14 (or so) mark.

David--sure, it is understandable why you are "much more favorably inclined towards trademarks than other forms of intellectual property." As you say, "It seems to me a good thing that it is possible to tell who you are doing business with, and no downside monopoly". As I noted here, the primary justification for trademark rights is based on the notion of fraud--that the "infringer" is defrauding his customers by misrepresenting his identity and the source of the goods being sold (see pp. 43-44 of my Against Intellectual Property, pp. 59-63 of Reply to Van Dun: Non-Aggression and Title Transfer, p. 34 of A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability).

But this analysis would give a cause of action to customers, however, not to the holder of the mark, who is not defrauded. Moreover, it would protect the customer only when there is fraud. For example, neither the customer (nor Rolex) should be able to sue Rolex knock-off companies, because people who buy fake Rolexes for $10 are not being defrauded. They know they are buying a cheap knock-off. But trademark law does give trademark holders--not customers--the right to sue infringers, regardless of whether there is really fraud to the consumer.

So while we can condemn fraudulent sales to customers, this is not what modern trademark law prevents. Modern state-run trademark law is almost as bad as cpoyright and patent, even if it has a less-objectionable core or origin. The fundamental problem with trademark law is that it is state law--it is created and administed by the state, which is a criminal organization. To expect justice from the state is like expecting a cat to bark.

Thus we have trademark rights granted to trademark holders, instead of to customers, the real victims of fraud. Thus we have a statutory scheme establishing an arbitrary, artificial legal system and an inept bureaucracy to construe and enforce it. Thus we have ridiculous extensions of trademark to cover "anti-dilution" rights, much as the term and scope of copyright and patent are gradually increased over time. And thus we have the government's courts used like trademark's more infamous cousins, copyright and patent, to stifle competition and squelch free speech. See, e.g., A Bully-Boy Beer Brewer, Straight Talk; 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All; Trademarks and Free Speech; Beemer must be next... (BMW, Trademarks, and the letter "M"); Hypocritical Apple (Trademark); ECJ: "Parmesian" Infringes PDO for "Parmigiano Reggiano"; Engadget Mobile Threatened For Using T-Mobile‘s Trademarked Magenta.

Clearly, this is just another example highlighting why the state is worse than useless; it is a harmful criminal organization.

And in fact, US trademark law is unconstitutional. While the US Constitution, to the extent it is legitimate and not just the de facto result of a successful coup d'etat, unwisely authorizes Congress to enact copyright and patent law, no provision is made for trademark law. Instead, trademark law is based on an unconstitutionally expanded reading of the Interstate Commerce clause. As James J. Kilpatrick noted in The Sovereign States: Notes of a Citizen of Virginia, in describing the Supreme Court's illegitimate expansion of power under the guise of the Constitution's interstate commerce clause:

It was an insidious process, conducted with the care of the cat that stalks her prey - now creeping forward, now pausing to sniff the air; now advancing, now lying still as the bird takes alarm; then edging forward again, and so, step by inexorable step, moving to the ultimate seizure.

But it started at the very beginning of the United States. Tom Dilorenzo, in The Founding Father of Constitutional Subversion, explains:

"Hamilton was also likely to be the first to twist the meaning of the Commerce Clause of the Constitution, which gave the central government the ability to regulate interstate commerce, supposedly to promote free trade between the states. Hamilton argued that the Clause was really a license for the government to regulate all commerce, intrastate as well as interstate. For "What regulation of [interstate] commerce does not extend to the internal commerce of every State?" he asked. His political compatriots were all too happy to carry this argument forward in order to give themselves the ability to regulate all commerce in America."

So don't stop with copyright and patent: abolish the unconstitutional Lanham Act, and its unjustifiable grant of trademark rights to trademark holders instead of defrauded customers, and maintain the link to fraud (knockoffs are fine; no anti-dilution law).

You scratch our back, we'll scratch yours. As reported on Patently-O:

Outsourcing of Patent Preparation: PTO Says Beware

In a recent notice, the PTO has indicated that it may be illegal to outsource invention information to a foreign county for the purposes preparing a US patent application.

1. A foreign filing license from the USPTO does not authorize the exporting of subject matter abroad for the preparation of patent applications to be filed in the United States.

2. Applicants who are considering exporting subject matter abroad for the preparation of patent applications to be filed in the United States should contact the Bureau of Industry and Security (BIS) at the Department of Commerce for the appropriate clearances.

Can you just picture thousands of U.S. patent lawyers pumping their fists and collectively hissing Yes!--as the spectre of unscrupulous Indians writing $12,000 patent applications for $1000 recedes... No wonder so many patent lawyers are pro-patent system! The "patent bargain" conventionally refers to the government giving inventors a monopoly in return for their publicly disclosing how the invention works. But I think it has a second meaning. (Cross-posted at Mises Blog.)

Update: See Patent Baristas, Hold Up There On That Outsourcing of Patent Work. The patent bar is loving this!

Interesting post by Mike Masnick of Techdirt, Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution, where he worries that the reasoning in the Second Amendment case Heller--where the prefatory clause "A well regulated Militia, being necessary to the security of a free State" was not held to modify the operative clause, "the right of the people to keep and bear Arms, shall not be infringed"--on the grounds that with similar reasoning, the IP clause might be de-linked from its initial cause "To promote the Progress of Science and useful Arts..." I.e., if the first clause merely states the purpose of the power, but can be ignored, as in Heller, then Congress can still establish copyright and patent even if we can show that they do NOT promote the progress of science and the useful arts.

Well, as I wrote there, Masnick has a reasonable concern, but I think, ultimately, these clauses are different. As this post above notes, in the case of the Second Amendment, the prefatory clause does not limit the operative clause. The limit on federal power is in the operative clause.

In the case of the copyright clause, first, this is a grant of power, not a limit on power. Second, as the poster notes, the power is the power "to promote the progress of science and useful arts" by a certain means, that is, by copyright and patent grants. But the power is clearly linked to "promoting progress." So I think you could probably argue that if IP does not promote the state goals, it's ultra vires. However, I'm afraid the necessary and proper clause would be used to give the feds a lot of leeway.

Techdirt: Is That The Best Cato Can Do In Defense Of Copyright?. By the heroic Michael Masnick. 'Nuff said.